Letter: Challenge validity of secret court

To the editor

Published 3:08 pm, Tuesday, September 3, 2013

Edward Snowden's release to the public of a secret Foreign Intelligence Surveillance Act court order, which grants the federal government the right to collect telephone records and emails on all Americans, and to store them forever, raises significant legal issues of which we should all be aware.

According to The New York Times, Mr. Snowden's release of previously secret information about this surveillance by the U.S. government has spawned a number of lawsuits challenging the court's legality.

As a retired lawyer who has been a member of the state bar for 50 years and was in active law practice for 40 years, I am following these constitutional developments with considerable apprehension.

In particular, the FISA court would appear to be objectionable on the grounds that it is secret and that the U.S. Supreme Court cannot or will not pass on its constitutionality. It appears that neither the decisions nor the constitutionality of that FISA court can be reviewed by the U.S. Supreme Court. And the Supreme Court has, in actual fact, never done so.

Although Congress has the power under Article I, Section 8(9) of the Constitution to "constitute tribunals inferior to the Supreme Court," does Congress have the power to create a new federal court whose decisions are both secret and not appealable into the regular federal court system? This court, by its own definition, is not "inferior" to the Supreme Court and cannot be challenged in the federal court system.

There is nothing in the Constitution permitting or justifying any secret court, and the U.S. has never had one before. It should be challenged strongly.